Harriet M.,1 Complainant,v.Daniel M. Tangherlini, Administrator, General Services Administration, Agency.

Equal Employment Opportunity Commission

Aug 19, 2016

0120140553 (E.E.O.C. Aug. 19, 2016)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Harriet M.,1
Complainant,

v.

Daniel M. Tangherlini,
Administrator,
General Services Administration,
Agency.

Appeal No. 0120140553

Hearing No. 570-2010-00748X

Agency No. 09-CO-FAS-NF-01

DECISION

The Commission accepts Complainant’s appeal from the Agency’s October 25, 2013 final
order concerning her equal employment opportunity (EEO) complaint alleging employment
discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended,
42 U.S.C. § 2000e et seq. The Commission’s review is de novo. For the following reasons,
the Commission AFFIRMS the final order.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a GS-14
Supervisory Contract Specialist in the Agency’s Service Contract Branch at the Federal
Acquisition Service facility in Arlington, Virginia. Complainant’s second-level supervisor (S2)
placed Complainant in a detail assignment as the Acting Deputy Director (Program Advisor) of
the Center for Acquisition Services, effective December 21, 2008. The detail assignment was
to last for up to 120 days.

In January 2009, the Agency hired a new Director of the Center for Innovative Acquisition
Development, and she became Complainant’s first-level supervisor (S1). Complainant alleges
that S1 undermined her authority on numerous occasions. For example, Complainant claims

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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that S1 reassigned her best-experienced employees to a male supervisor’s work unit without
discussing the matter with her. Further, Complainant claims that S1 manufactured lies about
her work performance. On March 11, 2009, S1 terminated Complainant’s detail assignment.
A new employee was hired as the Acting Deputy Director and the position was upgraded to the
GS-15 level.

On June 15, 2009, the Agency issued Vacancy Announcement No. 09000292TC04 for a GS-15
Program Advisor position. Complainant applied and was one of three candidates interviewed
by S1 (the selecting official) and another interview panelist (P1). All candidates were asked
the same questions and then rated by the panel. The panel rated Complainant as the lowest of
the three candidates, and selected the Selectee who was the highest-scoring candidate.

On August 28, 2009, Complainant filed a formal complaint alleging that the Agency
discriminated against her on the bases of race (African-American), sex (female), and age (53)
when:

1. On March 13, 2009, she was removed from the position of Acting Deputy Director
of the Center for Acquisition Services;

2. On March 27 and 28, 2009, she was subjected to a hostile work environment by her
immediate supervisor (S1), and her immediate supervisor undermined her authority
while serving as Acting Deputy Director of the Center of Acquisition Services; and

3. On December 21, 2008 through March 13, 2009, she was placed on a 120-day
detail and not paid as a GS-15, while a male co-worker holding the same position
was paid at the GS-15 level.

Complainant subsequently amended her complaint to allege discrimination on the bases of race
(African-American), sex (female), age (53), and in reprisal for prior protected EEO activity
when:

4. She was not selected for the position of GS-15, Program Advisor in the Service
Acquisition Center.

At the conclusion of the investigation, the Agency provided Complainant with a copy of the
report of investigation (ROI) and notice of her right to request a hearing before an Equal
Employment Opportunity Commission Administrative Judge (AJ). Complainant timely
requested a hearing, but the AJ assigned to the case granted summary judgment in favor of the
Agency and issued a decision on August 19, 2013.

In the decision, the AJ assumed arguendo that Complainant established a prima facie case of
discrimination and reprisal and found that the Agency had articulated legitimate,
nondiscriminatory reasons for its actions. Specifically, with respect to claims (1) and (3), S2
detailed Complainant to the Acting Deputy Director position. S2 informed Complainant that
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she was being detailed for up to 120 days, and once the new Center Director (S1) was on
board, it would be her decision as to what to do with the detail assignment and how to fill the
position. S2 added that he attempted to have the position upgraded to a GS-15, but it took a
long time to complete because of the backlog of Human Resources actions. Additionally, he
sought to include a temporary promotion in Complainant’s detail.

S1 stated that she decided to terminate Complainant’s detail assignment based on her concerns
about the grievances filed or threatened to be filed against Complainant over her treatment of
other employees and that allowing Complainant to remain in the Acting Deputy Director
position would result in additional grievances. Further, S1 did not believe that Complainant
shared her management philosophy. S1 disagreed with Complainant’s “hands-off” approach in
managing employees and meeting outcomes and did not believe it was the most effective
management style for the Center. S1 reasoned that because almost 70 percent of her staff was
interns or new employees, she needed a Deputy with a very hands-on approach.

As to claim (2), Complainant claimed that she was subjected to a hostile work environment as
evidenced by several incidents including, Complainant seeing a “glamour shot” picture of S1
on an employee’s desk; S1 commenting positively on some employee’s professional
appearance; S1 directing Complainant’s subordinate to conduct Fiscal Year 2009 performance
appraisal for her staff; and S1 reassigning “her” employees to other departments. The AJ
found that even if the actions did occur, there was no evidence that Complainant was subjected
to conduct sufficiently severe or pervasive to create a hostile work environment or that the
Agency’s actions were unlawfully motivated by Complainant’s protected classes. The AJ
determined that the incidents were little more than common everyday work place disputes and
there was no evidence that they were motivated by discriminatory animus.

Finally, with regard to claim (4), S1 affirmed that she scored the Selectee highest because of
his hands-on approach in streamlining processes, dealing with employee complaints kindly but
firmly, and because of his ability to negotiate effectively with multiple stakeholders.
Additionally, the Selectee’s resume and interview revealed significant technical and operational
capability in acquisition, as well as experience in acquisition, and they reflected both strategic
vision and entrepreneurial leadership. Additionally, S1 confirmed that the Selectee’s resume
also reflected extensive customer service skills and his managerial philosophy of team-
building, teamwork, and a hands-on approach were critical to his selection. As a result, S1 and
P1 scored the Selectee the highest and he was selected.

The AJ concluded that Complainant failed to show that the Agency’s reasons for its actions
were pretextual. As a result, the AJ found that Complainant had not been subjected to
discrimination, reprisal, or a hostile work environment as alleged. The Agency subsequently
issued a final order fully implementing the AJ’s decision. The instant appeal followed.

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CONTENTIONS ON APPEAL

On appeal, Complainant contends that the AJ erred in granting summary judgment in favor of
the Agency. Complainant argues that she established a prima facie case of discrimination and
reprisal. Complainant claims that she provided direct and indirect evidence that the Agency’s
reasons for its actions were pretextual. Complainant contends that S1 provided shifting
justifications for terminating her from the detail assignment. Additionally, Complainant argues
that the AJ ignored the circumstantial evidence regarding her non-selection. Accordingly,
Complainant requests that the Commission reverse the final order.

ANALYSIS AND FINDINGS

Disparate Treatment

To prevail in a disparate treatment claim such as this, Complainant must satisfy the three-part
evidentiary scheme fashioned by the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Complainant must initially establish a prima facie case by demonstrating
that she was subjected to an adverse employment action under circumstances that would
support an inference of discrimination. Furnco Constr. Corp. v. Waters, 438 U.S. 567, 576
(1978). Proof of a prima facie case will vary depending on the facts of the particular case.
McDonnell Douglas, 411 U.S. at 802 n. 13. The burden then shifts to the Agency to articulate
a legitimate, nondiscriminatory reason for its actions. Tx. Dep't of Cmty. Affairs v. Burdine,
450 U.S. 248, 253 (1981). To ultimately prevail, Complainant must prove, by a
preponderance of the evidence, that the Agency's explanation is pretextual. Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor Ctr. v. Hicks,
509 U.S. 502, 519 (1993).

In the instant case, the Commission finds that the AJ properly issued summary judgment as the
material facts are undisputed. Assuming arguendo that Complainant established a prima facie
case of discrimination and reprisal, the Commission finds that Complainant failed to present
evidence to rebut the Agency's legitimate, nondiscriminatory reasons for its actions. In
particular, as to claim (1), S1 affirmed that she decided to end Complainant’s detail assignment
because she had concerns about one grievance that had been filed and one grievance that had
been threatened to be filed against Complainant. ROI, Ex. 8, at 2. S1 confirmed that she was
concerned that allowing Complainant to continue as Acting Deputy Director would result in
additional grievances and she was unhappy with Complainant’s unwillingness to resolve the
grievances informally. Id. S1 noted that the decision was not based on Complainant’s
performance deficiencies; rather, S1 believed the problems were behavioral and reflected that
Complainant did not share S1’s management philosophy. Id. at 3.

As to claim (3), S1 explained that Complainant was paid at the GS-14 level because the Deputy
Director position was at that level at the time Complainant’s detail assignment was initiated.
ROI, Ex. 8, at 3-4. S2 added that he attempted to have the position upgraded to the GS-15
level; however, it took a long time to complete because of a backlog in Human Resources
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actions. ROI, Ex. 9, at 3-4. Further, S2 noted that he attempted to include a temporary
promotion for Complainant while she served in the detail assignment, but it did not occur
because Human Resources did not classify the position at the GS-15 level until after
Complainant left the detail assignment. Id. at 4.

As to claim (4), S1 stated that she selected the Selectee because he was the highest-scoring
candidate for the position. ROI, Ex. 8, at 11. S1 affirmed that in his interview, the Selectee
demonstrated a hands-on approach in streamlining processes; a willingness to deal with
employee complaints kindly, but firmly; the ability to negotiate effectively with multiple
stakeholders; and exceptional strategic planning. Id. at 11-12. S1 noted that the critical
difference between the Selectee and Complainant was that Complainant whole-heartedly
believed in taking a hands-off approach in managing employees and meeting outcomes. Id. at
12. S1 sought a Deputy who would be very hands-on in establishing streamlined processes and
reviewing the work of front-line employees. Id. Further, S1 sought a Deputy who was very
invested in the individual success of every employee within the Center and someone who the
employees trusted to treat them fairly. Id. S1 was aware of complaints that employees did not
trust Complainant to treat them fairly. Id. S1 believed that the other two candidates had
critical deficiencies. P1 agreed that Complainant did not demonstrate as high of a competency
as the other candidates. ROI, Ex. 12, at 3. As a result, S1 selected the Selectee.

Complainant now bears the burden of establishing that the Agency's stated reasons are merely
a pretext for discrimination. EEOC Request No. 05960403 (Dec. 6, 1996). Complainant can
do this directly by showing that the Agency's proffered explanation is unworthy of credence.
Tx. Dep't of Cmty. Affairs v. Burdine, 450 U.S. at 256. One way Complainant can establish
pretext as to her non-selection is by showing that her qualifications are observably superior to
those of the selectee. Bauer v. Bailar, 647 F.2d 1037, 1048 (10th Cir. 1981). This is simply
one method and is not the only way Complainant may establish pretext as to her non-selection
claim.

Construing the evidence in the light most favorable to Complainant, the Commission finds no
evidence that Complainant's protected classes were a factor in any of the Agency's actions.
Complainant's subjective belief that the management actions at issue were the result of
discrimination or reprisal is insufficient to prove pretext. As to her non-selection claim alleged
in claim (4), the Commission finds that Complainant failed to show that her qualifications for
the position were plainly superior those of the Selectee. In this case, the Selectee had
attributes that justified his selection, and the selection officials involved all affirmed that they
believed that the Selectee was better equipped to meet the Agency's needs. In the absence of
evidence of unlawful discrimination, the Commission will not second guess the Agency's
assessment of the candidates' qualifications. Tx. Dept. of Cmty. Affairs v. Burdine, 450 U.S.
at 259. At all times, the ultimate burden remains with Complainant to demonstrate by a
preponderance of the evidence that the Agency's reasons were not the real reasons and that the
Agency acted on the basis of discriminatory or retaliatory animus. Complainant failed to carry
this burden.

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Hostile Work Environment

With regard to Complainant’s hostile work environment claim, the Commission notes to
establish a claim of harassment a complainant must show that: (1) she belongs to a statutorily
protected class; (2) she was subjected to harassment in the form of unwelcome verbal or
physical conduct involving the protected class; (3) the harassment complained of was based on
her statutorily protected class; (4) the harassment affected a term or condition of employment
and/or had the purpose or effect of unreasonably interfering with the work environment and/or
creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for
imputing liability to the employer. See Henson v. City of Dundee, 682 F.2d 897 (11th Cir.
1982). Further, the incidents must have been “sufficiently severe or pervasive to alter the
conditions of [complainant's] employment and create an abusive working environment.”
Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993).

Therefore, to prove her harassment claim, Complainant must establish that she was subjected
to conduct that was either so severe or so pervasive that a “reasonable person” in
Complainant's position would have found the conduct to be hostile or abusive. Complainant
must also prove that the conduct was taken because of her protected classes. Only if
Complainant establishes both of those elements, hostility and motive, will the question of
Agency liability present itself.

Even assuming that the alleged conduct was sufficiently severe or pervasive to create a hostile
work environment, Complainant failed to show that the Agency's actions were based on
discriminatory or retaliatory animus. For example, S1 denied making any inappropriate
remarks about or providing any intimate pictures of herself to an employee. ROI, Ex. 8, at 6.
S1 noted that in the past, she has given employees a professional picture of herself with an
inspirational inscription. Id. S1 added that she rotated employees based on a formal training
policy established by S2. Id. at 8. Other reassignments were the result of the employees filing
or threatening to file grievances against Complainant. Id. S2 added that S1 did not
manufacture lies; rather, S1 and Complainant had differences of opinion regarding the status of
projects. ROI, Ex. 9, at 5.

Construing the evidence in the light most favorable to Complainant, the Commission agrees
with the AJ that Complainant has not shown she was subjected to a hostile work environment.
The record reflects that the alleged incidents were more likely the result of routine supervision,
personality conflicts, and general workplace disputes and tribulations. The Commission notes
that Title VII is not a civility code. Rather, it forbids “only behavior so objectively offensive
as to alter the conditions of the victim's employment.” Oncale v. Sundowner Offshore Serv.,
Inc., 523 U.S. 75, 81 (1998). As a result, the Commission finds that Complainant has not
established that she was subjected to discrimination, reprisal, or a hostile work environment as
alleged.

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CONCLUSION

After a review of the record in its entirety, including consideration of all statements submitted
on appeal, it is the decision of the Equal Employment Opportunity Commission to AFFIRM
the Agency's final order, because the Equal Employment Opportunity Commission
Administrative Judge’s issuance of summary judgment was appropriate and a preponderance of
the record evidence does not establish that discrimination occurred.

STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)

The Commission may, in its discretion, reconsider the decision in this case if the Complainant
or the Agency submits a written request containing arguments or evidence which tend to
establish that:

1. The appellate decision involved a clearly erroneous interpretation of material
fact or law; or
2. The appellate decision will have a substantial impact on the policies, practices,
or operations of the Agency.

Requests to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision or within
twenty (20) calendar days of receipt of another party’s timely request for reconsideration. See
29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R.
Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments
must be submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960,
Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In
the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is
received by mail within five days of the expiration of the applicable filing period. See 29
C.F.R. § 1614.604. The request or opposition must also include proof of service on the other
party.

Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your request for reconsideration. The
Commission will consider requests for reconsideration filed after the deadline only in very
limited circumstances. See 29 C.F.R. § 1614.604(c).

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (S0610)

You have the right to file a civil action in an appropriate United States District Court within
ninety (90) calendar days from the date that you receive this decision. If you file a civil
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action, you must name as the defendant in the complaint the person who is the official Agency
head or department head, identifying that person by his or her full name and official title.
Failure to do so may result in the dismissal of your case in court. “Agency” or “department”
means the national organization, and not the local office, facility or department in which you
work. If you file a request to reconsider and also file a civil action, filing a civil action will
terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z0815)

If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The court
has the sole discretion to grant or deny these types of requests. Such requests do not alter the
time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File
a Civil Action for the specific time limits).

FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

August 19, 2016
Date